DA 10
- 0178 IN THE SUPREME COURT OF THE STATE OF MONTANA

2011 MT 35
STATE OF MONTANA, Plaintiff and Appellee,
v. TYRONE PAYNE, Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,

In and For the County of Missoula, Cause No. DC 0 9
- 174 Honorable Robert L. Deschamps, III, Presiding Judge COUNSEL OF RECORD:

For Appellant: Joslyn Hunt, Chief Appellate Defender, Garrett R. Norcott, Assistant Appellate Defend er, Helena, Montana For Appellee: Steve Bullock, Montana Attorney General, Jonathan M
. Krauss , Assistant Attorney General, Helena, Montana Fred R. Van Valkenburg, Missoula County Attorney, Jason Marks, Deputy County Attorney, Missoula, Montana

Subm itted on Briefs: January 12, 2011 Decided: March 1, 2011 Filed:

__________________________________________ Clerk March 1 20112

Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 After moving from Connecticut to Montana, Tyrone Payne failed to register with the Montana sexualoffender reg istry as required by law. He was arrested and charg ed with felony fa ilure to register. F ollowing a jury trial, he was convicted. P ayne challenges the sufficiency of the State’s evidence, the admission of hear say evidence, and the appropriateness of certain prosecutor remarks during closing argument. We affirm. **ISSUE S**  ¶2 A restatement of the issue son appeal is: ¶3 Did theD istrict Court err in denying Payne’s motion to dismiss for insufficient
ev idence ? ¶4 Did the Di strict Courtabuse its discretion when it allowed hearsay evidence over Payne’s objection? ¶5 Did the prosecutor invade the province of the jury by ma king remarks that constituted comments on the evidence?

**FACTUAL AND PROCEDURAL BACKGROUND** ¶6 Prior to moving to Missoula, Montana, Tyrone Paynelived in Connecticut where he had been registered with that state’s sexual offender registry s ince January 1999
. Upon relocating to Missoula at some time prior to December 2008, Payne did not register with the Montana sexual of fender reg

istry nor did he notify the Connecticut registry of his relocation
. ¶7 On March 16, 2009, Payne was stopped in Missoula on a traffic violation
. Officer Frankewas one of the two officers participating in the stop. It is unclear from the3

recorde xactly what discussions took place during this encounter b ecause Payne ’sand Franke ’s testimonies are in direct conflict. W hat can be discerned is that during the traffic stop , the officers learned that Payne was a registered sex offender in Connecticut
. Franke claims to hav

e asked Payne if he was registered in Montana and that Paynetold him that Connecticut authorities advisedhe did not hav e to register in Montana. Payne claims no such discussion occurred
. However, during this traffic stop, Franke contacted Detective Merifield of the Missoula Police Department and asked her to investigate whether Payne was required to register in Montana and whether he had done so. P ayne
was not arrested that night for failure to comply with Montana’s sexual offend er reg istration laws. ¶8 Payne claims that on March 21, Franke found him in a bar and ordered him outside for questioning about his failure to register in Montana. P ayne states he told Franke that his failure to register had not been a problem during their encounter on March 16 and if he is supposed to register, just tell him. According to Payne, Franke told him to

“ figure it out. ”F ranke testified that he does not specifically recall this encounter. He recalls, however, that within a few days of his March16 message to Merifield , Merifield got in touch with him and told him that Payne was required to register in Montana. On March 24, Franke found Payne andarrested him for felony fa ilure to register. The In formation was filed on April 8, 2009. On April 21, Payne entered a not guilty plea. ¶9 On September 9, 2009, Payne filed a stipulation that provided, among other things, that the jury would be told that he (Payne )ha d a duty to reg

ister in Connecticut and a duty to register in Montana but would not be tol d any of the details of the4

underlying offense . The stipulation also informed the jury that at the time of his arrest in Montana there was no arrest warrant for Payne out of Connecticut. ¶10 Also on September 9, 2009, Payne filed a motion in limine requestin g that the District Court preclude from evidence a document provided by the State of Connecticut Department of Public Safety. This document consisted of two pages

—the first page was the Sex Offender Advisement of Registration Requirements signed by Payne on May 30, 2008, and the second page was a notice that Payne was not in compliance with Connecticut law because he had failed to confirm his address as of September 23, 2008. Payne a ssertedthat the ev idence should be precluded based on hearsay, violationof the confrontation clause, and surprise. The State objected to the motion. ¶11 The following day, just prior to the commencement of Payne’s trialand outside the presence of the jury , Payne’s motion in limine was discussed and the District Court reserved r uling on it. During the trial but before the court ruled on the motion, the State withdrew its objection and the court subsequently granted Payne’s motion. ¶12 Officer Franke and Detective Merifield testified on behalf of the State. Neither Payne nor any o ther witness testified for the defense. During Merifield’s testimony, the prosecutor asked her if she learned during her investigation whether P ayne was in compliance with Connecticut registration law. P ayne’s counsel immediately objected, indicating that his objection “goes to the motion in limine.” A n unrecorded sidebar occurred after which the District Court overruled Payne’s objection and allowed Merifield to continue
. She testified that Payne was not in compliance with Connecticut’s reg istration laws.5

¶13 The jury rendered a unanimous verdict of guilt. Payne filed a timely appeal. **STANDARD S** **OF REVIEW** ¶14 We rev

iew de novo a district court’s denial of a motion to dismiss for insufficient ev

idence. State v. Ommundson , 2008 MT 340, ¶ 10, 346 Mont. 263, 194 P.3d 672. ¶15 We review rulings on the admissibility of evidence to determine if the district court abused its broad discretion. Clark v. Bell , 2009 MT 390, ¶ 16, 353 Mont. 331, 220 P.3d 650. **DISCUSSION** ¶16 Did the District Court err in denying Payne’s motion to dismiss for insufficient evidence? ¶17 At the close of the State’s case, Payne moved to dismiss the case for insufficient
ev idence. Having stipulated that he had a duty to register and acknowledging that he had not registered within the time required by statute, Payne argued exclusively that the State fa iled to prove that heacted “knowingly”w hen he failed to reg

ister in Montana
. The District Court denied Payne’s motion. ¶18 On appeal, Payne again claims that the State failed to prove an essential element of the crime, i.e., that he “knowingly” failed to reg ister. He arg

ues that jurors were not presented with any

evidence of his knowledge of the reg istration requirement. He also asserts that evidence presented to the jury showed that Officer Franke did not ar rest him during their first or second encounters for failing to register because Franke himself was unsure of whether Payne was required to register
.6

¶19 The Stateclaims it presented evidence that Franke did instruct Payne to register. Furthermore it argues thateven if Franke had not, “[i]gnorance of the law is no defense in Montana.” In other words, the State is not required to prove that Payne had been instructed to register; it need prove only that he knowingly fa iled to do so. Lastly, the State submits that Payne “knew” the following critical facts : he had prev iously been a reg istered sexual offender in Connecticut; he mo ved from Connecticut to Montana; he did not register in Montana. ¶20 S ection 46
- 23
- 507, MCA, in relevant part, provides: A sexual or violent offender who knowingly fa ils to register . . . under this part may be sentenced to a term of imprisonment of not more than 5 years or may be fined not more than $10,000, or both. Under this, and other companion statutes, Payne was obligated to regi ster as an offender in Montana within three days of entering Missoula County. See§ 46
- 23
- 504(1)(c) and (d), MCA. It is undisputed that he failed to do so. ¶21 The criminal state of mind attributed to § 46
- 23
- 507, MCA, i s “knowingly.” Section 45
- 2
- 101(35), MCA, provides three definition so f “knowingly.” I n this case, the relevant definition was given to the jury in the form of a jury instruction by the District Court: “ A person acts knowingly with respect to a specific circumstance defined by an offense when the personis aware of that circumstance.” The court gave additional jury instructions on purpose and knowledge as well. Payne did not challenge the court’s jury instructions, and does not attempt to challenge them here. ¶22 We are persuaded by the State ’s argument that Payne is presumed to know the law of Montana
. For at least a century, it has been the law in Montana that “ignorance of7

the law is no defense.” State ex rel. Rowe v. District Court , 44 Mont. 318, 324, 119 P. 1103, 1106 (1911) , super s eded b y statute on other grounds in State ex rel Shea v. Judicial Standards Comm ., 198 Mont. 15, 643 P. 2 d 210 (1982) (“ If a person accused of a crime could shield himself behind the defense that he was ignorant of the law which he violated, immunity from punishment would in most cases result. No system of criminal justice could be sustained with such an element in it to obstruct the course of its administration .”)
. We reiterated this rule in State v. Trujillo , 2008 MT 101, ¶ 15, 342 Mont. 319, 180 P.3d 1153, when we held that Trujillo unlawfully trespassed onto another’s land despite his assertions that he had not passed through any gates or barriers intended to bar access. Similarly, in State v. G’Stohl, 2010 MT 7, ¶ 14, 355 Mont. 43, 223 P.3d 926, we noted that “people are presumed to know the law” and will not be relieved of criminal liability for their failure to comply with it. ¶23 Under this analysis, it was Payne’s responsibility to determine if he was required to register with the Montana sexual offender reg istry. C onversely, it was **not**F ranke’s duty to tell Payne whether or not he needed to register. P ayne knew he was a sexual offender. He knew he registered in Connecticutand was subject to Connecticut’s statutes which expressly prov

ide that “[i] f any person who is subject to registration under this section changes such person ’ s address, such person shall, without undue delay, notify the Commissioner of Public Safety in writing of the new address and, if the new address is in another state, such person shall also register with an appropriate agency in that state, provided that state has a registration requirement for such offenders. ” Conn. Gen. Stat. § 54
- 252(a). P ayne moved to Montana. He knew he did not reg ister with the Montana8

sexual offender registry. During at least one of his encounters with Franke, the two men discussed Payne’s status as a registeredo ffender in Connecticut. W hile there is conflicting testimony as to whether Franke told Payne he had to register or just asked him whether he hadregistered, this conversation, at the very least, should have prompted Payne to determine the applicable Montana law. We cannot countenance his failure to do so on the ground that he did not know the law and Franke did not tell him. We conclude the jury had before it sufficient evidence to determine that Payne had “k nowingly” failed to register. ¶24 Did the District Court abuse its discretion when it allowed hearsay evidence over Payne’s objection? ¶25 During the trial, Detective Merifield testified that Payne had been registered with the Connecticut registry but was not , at th e time of trial, in compliance with his reg istration obligations in Connecticut. P ayne objected to the testimony on the ground that it violated Payne’s previously
- granted motion in limine
. The District Court overruled Payne’s objection and allowed Merifield to continue with the same line of testimony. ¶26 Payne arg

ues on appeal that Merifield’s testimony, originally obtained by telephone from a Connecticut authority, was inadmissible “testimonial ” hearsay that violated the confrontation clauses of the United States and Montana Constitutions. He claims it was prejudicial and planted “a propensity inference with the jurors.” ¶27 The State counter sthat Paynemay not now argue violation of the co nfrontation clause based upon Merifield’s testimony because Payne ’s trial objection lacked9

particularity

— referring only to his “motion in limine”rather than the confrontation clause specifically. The State further asserts that the purpose of Payne’s moti on in limine
was to exclude from evidence the Connecticut Sex Offender Registry form signed by Payne in May 2008 in which Payne acknowledged, among other things, that if he moved to a nother state, he had to reg ister with the appropriate registry for that state. The State opines that the motion in limine was “not broadly applicable to exclude any and all information regarding Payne’s registration requirements in Connecticut.” The State also arg ues that under State v. Canon , 212 Mont. 157, 687 P.2d 705 (198 4), overruled on other grounds, State v. Allen , 2010 MT 214, 357 Mont. 495 , 241 P.3d 1045 , Merifield’s testimony was not testimonial hearsay
. ¶28 Hearsay is a statement , other than one made by the declarant while testifying at the trial or hearing, offered in ev idence to prove the truth of the matter asserted. M. R. Ev id. 801(c). A

d eclarant’s statements are presumed testimonial if they are knowingly made to a police officer o r g ov ernment agent. A statement is presumed
non -te stimonial if the declarant had “ objective reason to believe ”that the statement served o nly “to av

ert or mitigate an imminent or immediate dang er” and the agent receiving the statement lacked intent to create evidence. State v. M izenko , 2006 MT 11, ¶ 23, 330 Mont. 299, 127 P.3d 458
. “ Testimonial hearsay statements are inadmissible unless the declarant is ‘unavailable’ for trial and the defendant had a prior opportunity for
cross - examination.” State v. Spencer, 2007 MT 245, ¶ 16, 339 Mont. 227, 169 P.3d 384. ¶29 The testimony delivered b y Merifieldat trialwas obtained when she called the Connecticut authorities during her investigation of Payne. The “declarant” in this caseis10

the Connecticut

o fficial with whom Merifield spoke. Presumably, upon reaching “the declarant , ” Merifield identified herself as a Missoula Police Department detective conducting an investigationand asked about the status of Payne’s Connecticut reg istration. She was told that Paynewas a former registrant b utt hat hisC onnecticut reg istration was not current
. Sh e testified to the same at trial. W hile Merifield did not repeat the declarant’s words verbatim o n the witness stand , the fact remains that the statement of the Connecticut official during the inquiry

—that Payne was not in compliance with Connecticut regi stration requirements

— was made knowingly to a go vernment official for the purpose of creating evidence , and then presented at trial for the truth of the matter asserted. As such, it falls squarely within the analysis of Mizenko
. Under these circumstances , Merifield’s statements pertaining to Payne’s Connecticut reg istrationweretestimonial hearsay. ¶30 Relying on Canon , the State argues that Merifield’s testimony was not testimonial hearsay because she did not on the witness stand repeat any actual statement made by the declarant. In Canon , a police officer and an informant were together in a room when theinformant knowingly and consen sually recorded a telephone conversation with the defendant. Canon , 212 Mont. at 163
- 64, 687 P.2d at 708. At trial, and at a time when the informant was not available, the police officer attempted to testify that because the informant had agreed to tape the defendant, the standard for taping a conversation ( i.e., one party

to the conv

ersation consents to the recording )was satisfied. Canon , 212 Mont. at 163
- 64, 687 P.2d at 708. Canon challenged the testimony as hearsay arg uing that the informant’s agreement to tape the conversation was being presented asthe tr uth11

of the matter asserted
. Canon , 212 Mont. at 163, 687 P.2d at 708. The Canon Court disagreed, however, and ruled that the officer’s testimony was not hearsay but merely established that an agreement had been made between the officer and the informant. The Court indicated that the officer “did not testify as to any statement made by [the informant].” Canon , 212 Mont. at 164, 687 P.2d at 709. The Court also stated that even had it been hearsay, it was not rev ersible error based on the informant’s subsequent testimony. Canon , 212 Mont. at 164, 687 P.2d at 709. We conclude that the holding in Canon is narrow and applicable only to the circumstances of that case. I

t is therefore inapposite. ¶31 As noted above, testimonial hearsay statements may be admitted if the declarant is unavailable for trial and the defendant hada p rior opportunity to cross - examine the declarant. This exception does not apply to the case before us. It is undisputed thatthe Stated id notattempt to have any C onnecticut official testify at trial , andt herefore the issue of unavailability is not before us . M oreover, it is clear that Payne had no opportunity to cross - examine the individual with whom M erifield spoke. We therefore conclude the District Court erred in admitting this hearsay statement into evidence. ¶32 Having determined that Merifield’stestimony was hearsay , we next examine the State’s argument that Payne failed to sufficiently preserve the issue for appeal. As noted above, Payne’s motion in limine had two documents attached to it

—(1) the Connecticut “Sex Offender Advisement of Reg istration Requirements” signed by Payne acknowledging his obligation to register in another state should he move, and (2) a Connecticut Sex Offender Registry form indicating that Payne was “not in compliance.”12

Payne sought to keep these documents, and the inf ormation they contain, from being introducedin evidence and the District Court granted his motion. M erifield, however, testified directly to the fact that a Connecticut official told her that Payne was not in compliance with Connecticut registry requirements. ¶33 M. R. Evid. 103 provides that “ [e] rror ma y not be predicated upon a ruling which admits . . . evidence unless a substantial right of the party is affected, and . . . [i]n
case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context .” (Emphasis added.) Under these circumstances, we conclude Payne’s objection to the testimony at trial

—“g oes to the motion in limin e”

— was apparent from the context

and was sufficient to preserve this issue for appeal
. ¶34 We now determine whether the courtcommitted rev ersible error when it overruled Payne’s objectionand allowed the challenged testimony
. ¶35 In State v. Van Kirk , 2001 MT 184 , 306 Mont. 215, 32 P.3 d735, we stated that the first step in a

reversible error analysis requires us to determine whether the error complained of is a “ structural ” error or a “trial ”error. Van Ki rk, ¶ 37. Structural error affects the “ framework within which the trial proceeds, ” and is automatically reversible. Van Ki rk , ¶¶ 38
- 39. Trial error is “that type of error that typically occurs during the presentation of a case to the jury. ” Van Ki rk, ¶ 40. “ Trial error is not presumptively prejudicial and therefore not automatically rev ersible.” Van Ki rk, ¶ 40. Rather, it is subject to review under our harmless error statute, § 46
-20
-701(1), MCA. The admission of Merifield’s testimony here is acl assic example of a trial error.13

¶36 Section 46
- 20
- 701(1), MCA, establishes: Whenever the record on appeal contains any order, ruling, or proceeding of the trial court against the convicted person affecting the convicted person ’ s substantial rights on the appeal of the cause, together with any required objection of the convicted person, the supreme court on that appeal shall consider the orders, rulings, or proceedings and the objections thereto and shall reverse or affirm the cause on the appeal according to the substantial rights of the respective parties, as shown upon the record. A cause may not be rev ersed by reason of any error committed by the trial court against the convicted person unless the record shows that the error was prejudicial. ¶37 To determine whether the admission of the evidence was prejudicial to Payne we look at whether there is a reasonable possibility that the tainted evidence might hav e contributed to his conviction. Van Ki rk, ¶ 42. Following the guidance set forth in Van Ki rk, we consider whether the inadmissible evidence is proof of an element of the crime for which Payne was charged. “Clearly, if the only evidence tending to prove an element of the crime is tainted, then reversal will be compelled.” Van Kirk, ¶ 45. However, i f the

“tainted evidence does **not**g o to the proof of an element of the crime charged, and there i s no other admissible evidence tending to prove theparticular factat issue, the admission of the tainted evidence will be deemed harmless only if the State demonstrates that no reasonable possibility exists that the admission of the tainted evidence might have contributed to the defendant’s conviction.” Van Kirk, ¶ 46. (Emphasis in original.) ¶38 Applying Van Ki rk’s a nalysis , M erifield’s ev

idence did not go to an element of Payne’s charged offense , as failing to comply with an other state’s statutes is not an element of the crime with which Payne was charged . No untainted admissible ev idence was presented to show that Payne was not in compliance with Connecticut’s registration laws. Therefore, for this ev idence to be harmless, the State must demonstrate that there14

was no “reasonable possibility” that the jury relied on Payne’s lack of compliance with Connecticut law to convict him of lack of compliance with Montana law
. ¶39 The tainted testimony in this case raises a concern that the jurors could have
c oncludedt

hat Payne has a propensity for failing to comply with sexual offender reg istration laws

—in other words, just as he failed to keep his Connecticut registration current, he failed to register in Montana
. Payne, however, raise d no propensity objection in the District Court. A s we have held many times, we will not put a district court in error for failing to address an issue or an argument that was not made before it. Prescott v. Innovative Res. Group, LLC, 2010 MT 35, ¶ 14, 3 55 Mont. 220, 225 P.3d 1253. ¶40 Rev

iewing the evidence to which Payne stipulated and the facts of this case, we conclude the jury had sufficient admissible evidence before it to support its verdict that Payne “knowingly” fa iled to register in Montana. For th is reason, we conclude the District Court’s admission of inadmissible hearsay evidence was harmless error. ¶41 In summary, the court admitted inadmissible testimonial hearsay evidence over a proper trial objection. While this constituted trial error, applying the Van Ki rk

analysis we determine the testimony was not prejudicial to Payneand therefore harmless
. ¶42 Did the prosecutor invade the province of the jury by making remarks during closing argument that constituted comments on the evidence? ¶43 The prosecutor, during closing arguments, made multiple references that Payne “knew” he had an obligation to register with Montana but failed to do so. Payne argues that such remarks were inappropriate comments on the evidence and prevented Payne from receiving a fair trial. He acknowledges on appeal that he made no contemporaneous15

objection at the time and asks that this Court exercise plain error review or, alternatively,
rev iew the issue as an ineffective assistance of counsel claim
. We declinet o do so . Payne hasf

ailed to demonstrate why plain error review of this issuei srequired in this
case. A s we have prev iously noted, we use the plain error doctrine “ sparingly, on a
case -by
- case basis, ”and only where failing to review the claimed error “may result in a
manifest miscarriage of justice, ma y leave unsettled the question of the fundamental fa irness of

the trial or proceedings, or ma y compromise the integrity of the judicial process.” State v. Finley , 276 Mont. 126, 137, 915 P.2d208, 215 ( 1996), overruled in part on other grounds, State v Gallagher , 2001 MT 39, ¶ 21, 304 Mont. 215, 19 P.3d 817. We conclude Payne has not met this threshold
. **CONCLUSION** ¶44 For the foregoing reasons, we affirm Payne’s conviction
.
/S/ PATRICIA COTTER We Concur: /S/ JAMES C. NELSON /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ JIM RICE